Track discipline to quickly counter lawsuit claims

No employer is immune from employee lawsuits. But there is a lot you can do to lessen the impact of lawsuits that do occur—before they cost huge expenditures of time, effort and money. One of the best ways to ensure the quick dismissal of frivolous claims is to have information at your fingertips, especially disciplinary data.

If you track all discipline—that is, if you can readily identify who was disciplined, for what and by whom—you can easily defeat many claims. For example, employees commonly claim they were fired for alleging discrimination, which is a protected activity. But if you can show that you used the same rationale to impose the same discipline on other employees who did not complain about alleged discrimination, the court will most likely toss the lawsuit early on.

Recent case: Shoulan Chang, who worked as a counselor for Safe Horizons, complained of race discrimination. Over the next year, Chang received oral warnings about the poor job she was doing. Safe Horizons eventually fired her when she did not improve.

Chang sued, claiming the employer targeted her because she had complained. But Safe Horizons was ready with its disciplinary records. Those records showed that other employees who had not complained about discrimination were also disciplined for the same work deficiencies as Chang. The court dismissed the case. (Chang v. Safe Horizons, No. 05-6760, 2nd Cir., 2007)

Final note: The best disciplinary approach involves a well-designed progressive discipline system: track the offense; how the employee responded; which supervisor was involved; and how the matter was finally resolved.

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